Judicial Disqualification: A Historical Perspective
Edicts designed to assure judicial impartiality have been recorded since ancient times. For example, pursuant to the Roman Code of Justinian, a party who believed that a judge was “under suspicion” was permitted to “recuse” him, as long as he did so before issue was joined.
Early English jurist Henry of Bracton (c. 1210 – c. 1268) also felt that a litigant should be permitted to disqualify a judge on the basis of a “suspicion” of bias; but other English commentators – including the
influential Blackstone – rejected absolutely the possibility that a judge might be disqualified even for actual bias, much less on the basis of a litigant’s mere “suspicion” that a judge might be biased.
Early English courts — influenced by Lord Henry Coke’s familiar admonition, in Dr. Bonham’s Case (1609), that “no man shall be a judge in his own cause” – did hold that a judge could not preside over a case in which he stood to benefit in a financial way. But, in contrast to the civil law system of “recusation,” in early English law a judge would be disqualified for possessing a direct financial interest in the cause before him, and for absolutely nothing else. In fact, even direct pecuniary interest would not always lead to disqualification because it was generally recognized that, on occasion, when no other judge was available, “necessity” would require an interested judge to sit. This situation gave birth to what has come to be known as the “Rule of Necessity;” the earliest recorded invocation of which came in a 1430 case in which it was held that, where there was no provision for the appointment of a substitute judge, the Chancellor of Oxford could preside over a matter even though he was a party to it.
As was the case in early English Law, in the United States at common law the only judicially accepted ground for disqualification of a judge was his pecuniary interest in the cause; and, for many years following independence American law — like English law — admitted a very limited number of grounds for seeking judicial disqualification. For example, the initial version of the original federal judicial disqualification statute — which was enacted in 1792 — provided for a judge to be disqualified only when he was concerned in interest, had acted in the cause, or had been “of counsel.” See Act of May 8, 1792, ch. 36, § 11, 1 Stat. 278.
Congress subsequently amended that statute many times — usually expanding the grounds for seeking judicial disqualification. A similar expansion of the disqualification right also took place in most American states. In addition, in some jurisdictions a party may have one judge removed from a case without making any showing of cause whatsoever; as long as the party makes her application in a timely manner, and otherwise follows the proper procedure for doing so. This process is called different things in different states; but, it is most commonly referred to as peremptory disqualification.
The subject of judicial disqualification, although much before courts and state legislatures, only rarely attracts widespread public interest in the United States. It did so early in the 20th Century in Montana; again in the late 1960’s, when Congress rejected the Supreme Court nomination of Justice Clement Haynsworth partly because of his failure to recuse himself from presiding over certain cases); and again in the early part of this Century, when the Sierra Club asked Justice Antonin Scalia not to participate in a case involving then Vice-President Dick Cheney on the basis of the fact that the two had taken a duck hunting trip not long before. http://www.nytimes.com/
1. 1. For more information about the evolution of judicial disqualification law that is readily accessible on the Internet see R. Flamm, “History and Problems with the Federal Judicial Disqualification Framework,” Drake Law Review, Vol. 58, P. 761 (2010).
2. 2. For additional information on this subject see R. Flamm, “The History of Judicial Disqualification in America,” The Judge’s Journal, Vol, 52 no.3 (American Bar Association 2013).
3. For a more detailed analysis of how federal and state judicial disqualification laws developed see R. Flamm, Judicial Disqualification: Recusal and Disqualification of Judges (Second Edition 2007) (chapters 1 and 23).